Thursday, October 28, 2010

DeKalb Georgia Superior Court Judge Robert J. Castellani probably expressed a bit of surprise last Tuesday when an attorney representing the parent company of LexisNexis asserted that the public has no constitutional right of access to the courts in an exchange Castellani on a motion for summary judgment in a case seeking to have Fulton County's e-filing document system declared unconstitutional. It's "the fourth iteration of a potential class action against Fulton County and its e-filing system," a Law Technology News article this morning says, charging that the Fulton court's requirement that documents be filed via the fee-based LexisNexis File & Serve system declared an unconstitutional violation of citizens' right to access the courts. The suit also says the Fulton court's requirement violates Georgia law that stipulates the method by which legal documents must be filed and constitutes an "illegal scheme" between the county and LexisNexis' parent company, Reed Elsevier, to "impose an unlawful mandatory e-filing system upon litigants in Fulton County State and Superior Court and to charge excessive and unauthorized fees in connection therewith."

Plaintiffs, the LTN article said, "include three attorneys; a non-attorney who, as administrator of his father's estate, 'has been subjected to the Lexis fees'; and a corporate entity, Best Jewelry Manufacturing, which was a party to a suit in Fulton County State Court in 2008." Their complaint says that LexisNexis charges administrative fees of between $7 and $12 for each document filed in addition to the courts' statutory filing fees, public access terminals at the courthouse allows pro se litigants to register and file documents without paying the fee….

Judge Castellani's response to Tuesday's assertion included citing the Georgia Supreme Court's 1984 ruling in Nelms v. Georgia Manor Condo Association (253 Ga. 410), which held that while the right to access to the courts is not unfettered, "it is axiomatic that an individual must have access to the courts in order to assert the right of self-representation provided by [the right to the courts provision]."

An article on Law.com this morning looked over what some are saying appears as "a strong trend that has developed among federal judges to reject the proposed prison terms as draconian even as the sentencing guidelines for child pornography crimes have grown increasingly harsh…. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined that trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so…."

"In United States v. Grober," the article said, "the Justice Department last June urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for a David Grober was 'outrageously high.' Hayden, who sits in New Jersey, had set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair." ( District Court Opinion Here ). The 3rd Circuit commented "in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination – but without ever challenging the substantive reasonableness of the ultimate sentence imposed – the government has found what it describes as procedural error, and we will affirm."

Four months earlier, the 2nd Circuit had handed down its opinion in United States v. Dorvee, a ruling that overturned a within-guidelines sentence in a child pornography case on the grounds that the sentence was also too harsh, calling the child pornography guideline 'fundamentally different' from other guidelines and saying that, unless it is 'applied with great care, can lead to unreasonable sentences,' the article said. The 2nd Circuit also faulted the guidelines for failing to distinguish between "run-of-the-mill" offenders and the most dangerous offenders, citing as proof of the "irrationality" of the law that a defendant who actually engages in sexual conduct with a minor may be subject to a lower guidelines range than one who distributes child pornography. As a result, the 2nd Circuit concluded that the "eccentric guideline of highly unusual provenance" is not worthy of the weight afforded to other guidelines.

The 3rd Circuit cited the 2nd. Circuit's Dorvee ruling with approval as it rejected the Justice Department's appeal of Hayden's sentencing rationale.

Tuesday, October 26, 2010

In a 7-0 decision, this morning, the Ohio Supreme Court held that rulings and statements made by a judge during trial demonstrated bias against a defendant and his attorneys that prevented the defendant from receiving a fair trial.

Indicted on two counts of aggravated murder arising from the killing of one victim, the defendant had also been indicted on six additional counts of attempted murder and on eight additional counts, with firearm specifications included, in 12 counts of the indictment for other victims. The defendant pleaded not guilty to all charges, but the jury found him guilty and he received the death sentence for the aggravated murder. He appealled the convictions and death sentence to the Supreme Court, advancing 23 allegations of legal or procedural error by the trial court. (Appellant's brief)

"Among those assignments of error," the Court's summary says, "defendant asserted that the trial judge had violated his right to a fair trial by threatening to pursue post-trial sanctions against his attorneys based on their attempts to have the judge disqualified from hearing the case, repeatedly denying defense motions and requests for brief delays in trial proceedings that the state did not oppose, and by refusing to allow his attorneys to resign from the case or allow the defendant to dismiss his attorneys and represent himself based on the judge's apparent hostility to the attorneys.

Supreme Court Justice Evelyn Lundberg Stratton wrote, "This court has a responsibility to preserve the integrity of the criminal justice system, which includes a duty to ensure that all defendants have received a fair trial from an impartial judge. Where the record demonstrates that such has not occurred, the remedy is a new trial ….

"The record shows that the trial judge harbored a bias against defense counsel that was manifested through his comments and rulings during the trial. This bias first became apparent after counsel filed the affidavit of disqualification, and it continued throughout the rest of the proceedings. … (T)he trial judge suggested that counsel had manipulated, defrauded, and deceived the court in requesting him to preside over the certification hearing in order to disqualify him from sitting on the trial … the trial judge threatened counsel with sanctions and warned them, ‘[I]f it’s established you did that, you’ll be held accountable.’ After counsel moved to withdraw from the case, the trial judge expressed his belief that counsel were using their concern about being held in contempt as ‘leverage to try to get this Court to come off of its stance to hold them accountable for anything they may have done.'"

Wednesday, October 13, 2010

In a ruling that could be catastrophic for some charter schools, the Ohio Supreme Court yesterday said a property tax exemption for public schools does not extend to property leased to a "school for profit," following the precedent it had set back in its1874 case, Gerke v. Purcell, between the City and Cincinnati Archdiocese.

The case here in point, the Court's summary explained, "involved for-profit company, Anderson/Maltbie Partnership (AMP), leased property from October 1999 through October 2004 to a nonprofit corporation, which in turn used the property to operate a community or charter school called the Cincinnati College Preparatory Academy (CCPA). Under the lease agreement, CCPA paid AMP $275,000 a year for the use of the building.

"AMP filed an application with the Ohio tax commissioner seeking a property tax exemption for the 2002 tax year and remission of taxes it had paid for 1999, 2000 and 2001, asserting that because the property was used by the lessee as a public school facility, it qualified for exemption from property taxes under R.C. 5709.07(A)(1), a provision of state law that grants exemption to 'public schoolhouses.' The commissioner denied the requested exemption and AMP appealed to the Board of Tax Appeals. On review, the BTA overruled the commissioner and ordered him to approve the requested exemption

The commissioner exercised his right to appeal the BTA ruling to the Supreme Court. [ Case and Court’s Summary ]

"Gerke holds that the public-schoolhouse exemption does extend to privately owned property, but only when that property is 'appropriated to the support of education for the benefit of the public without any view to profit,' an essential element being the 'exclusion of all idea of private gain or profit.' … But by seeking to exempt a commercial office building that is leased to the school for profit, AMP seeks a broader exemption….

"AMP relies on Bexley Village, Ltd. v. Limbach (1990)," the Court said, "… to maintain that the commissioner and the BTA must focus exclusively on the lessee's use of the property. … (But) because Bexley Village addresses the public-college exemption, we regard the case as inapposite. We hold that under the public-schoolhouse exemption, the restriction that the property not be used with a view to profit requires examination of the total use of the property by both lessor and lessee. If the lease is intended to generate profit for the lessor, the property does not qualify for exemption; similarly, the property does not qualify if the lessee’s use is intended to generate profit. It follows that because AMP leases the property to CCPA under a for-profit lease, the public-schoolhouse exemption is not available in the present case."

Tuesday, October 12, 2010

The Ohio Supreme Court followed its 20-year-old precedent this morning in ruling that "All wrongful-imprisonment claimants must follow a two-step process. In the first step, the claimant must bring an action in the court of common pleas to secure a determination that he or she is a wrongfully imprisoned individual entitled to compensation. In the second step, the claimant must file a civil action against the state, in the Court of Claims, to recover a sum of money… Only courts of common pleas have jurisdiction to determine whether a person has satisfied the five requirements of R.C.2743.48(A). .[Walden v. State (1989) ] [ Opinion and Case Summary ]

The General Assembly amended R.C. 2743.48 in 2003, the state law that authorizes persons who have been wrongfully imprisoned to recover civil damages from the state under certain circumstances. Among other changes, the 2003 amendment added language to the statute allowing recovery not only by persons who are officially exonerated of guilt for the crimes for which they were imprisoned, but also by persons whose convictions and prison sentences are vacated, dismissed or permanently overturned on appeal because of procedural errors during their trials. [ See HB 338, § 1 (2003), eff. 9/17/2010 ]

"In today's unanimous decision," the Court's summary said, "Justice Pfeifer wrote: 'appellee argues, and we do not deny, that R.C. 2743.48(A), as amended, does not state that a claim premised on a procedural error must originate in a court of common pleas. It is equally clear, however, that the statute does not explicitly state that such a claim can originate in the Court of Claims. We consider the statute ambiguous as to the sole issue before us. Accordingly, we turn to other considerations to determine the intent of the General Assembly, as permitted by R.C. 1.49

"R.C. 1.49(D) permits a court, faced with determining the legislative intent behind an ambiguous statute, to consider '[t]he common law or former statutory provisions, including laws upon the same or similar subjects' …. Under R.C. 1.49(E), the intent of the legislature in enacting an ambiguous statute may be determined by considering '[t]he consequences of a particular construction.'"

Monday, October 11, 2010

MSNBC.com relates thatPresident Barack Obama last Friday signed the Twenty-First Century Communications and Video Accessibility Act of 2010 ( Senate Bill 3304 ) into law setting up new federal guidelines that will require the telecommunications industry to:

Make getting to the Internet easier by improving the user interfaces on smart phones,

Provide audible descriptions of on-screen action to help the blind more fully enjoy television,

Add captions to online TV programming to help the deaf,

Make the equipment used for Internet telephone calls compatible with hearing aids, and

Add a button or other switch to television remote controls for simpler access to closed captioning on television.

The President said the new law "will make it easier for people who are deaf, blind or live with a visual impairment to do what many of us take for granted, from navigating a TV or DVD menu to sending an e-mail on a smart phone.

"It sets new standards so that Americans with disabilities can take advantage of the technology our economy depends on, and that's especially important in today's economy when every worker needs the necessary skills to compete for the jobs of the future."

Friday, October 08, 2010

Cincinnati.com Wednesday morning reported that Ohio Attorney General Richard Cordray has filed a lawsuit against Ally Financial Inc. and its GMAC Mortgage division, alleging fraud that could involve hundreds of foreclosures in the state and asking for civil penalties of up to $25,000 for every violation of the state's consumer laws. [ See Press Release ]

"Authorities in at least six other states -- Connecticut, Florida, Texas, North Carolina, Iowa, and Illinois -- are probing whether lenders used false documents and signatures to justify hundreds of thousands of foreclosures," Wednesday's article says. "GMAC, JP Morgan and BofA have halted foreclosures in 23 states – including Ohio, Kentucky and Indiana – after evidence surfaced that employees or outside lawyers signed documents without reading them or filed inaccurate paperwork. In December, a GMAC employee said in a deposition in a foreclosure case filed in West Palm Beach, Florida, that his team of 13 people signed about 10,000 documents a month without verifying their accuracy."

USAToday.com Wednesday morning said, "Americans can sue almost anyone for almost anything. But they can't sue prosecutors-- Not when they hide evidence that could prove someone's innocence. Not when they violate basic rules designed to make sure trials are fair. Not even when those abuses put innocent people in prison.

"Almost 35 years ago, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses. Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations," the article continued. That case, Imbler v. Pachtman (1976) -- one in which a man convicted of murder ultimately won his release with the revelation of newly discovered evidence -- said prosecutors have absolute immunity from civil rights lawsuits for their work in the courtroom, even while acknowledging that its ruling "leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprived him of liberty," but still saying that the alternative was worse: leaving prosecutors to fear a lawsuit, or even bankruptcy, every time they lose a trial.

A like situation is again before the Court in Connick v. Thompson. This "latest test of the extent of prosecutors' immunity," USAToday summarized, "began with a December 1984 murder and a separate carjacking three weeks later in New Orleans. John Thompson was convicted of both crimes and sentenced to die for the murder. A month before his execution date, his lawyers discovered that prosecutors had deliberately covered up a police lab report that showed he could not have committed the carjacking. Then they uncovered still more evidence that undermined his murder conviction."

Thompson was acquited in 2003, suing New Orleans District Attorney Harry Connick Sr. and his office for failing to train the prosecutors who covered up that evidence four years later. A jury awarded him $14 million, which was naturally appealed, but affirmed, by both a Fifth Circuit panel and full en banc sitting in last year. Now the Supreme Court decides whether he can keep the $14 million. They heard the case Wednesday.

Wednesday, October 06, 2010

New York's 2nd. Judicial Department Appellate Court ruled last week that the New York City Medical Examiner's Office's failure to inform a decedent's parents that that office had removed and retained their late son's brain violated the parents' right of sepulcher.

Law.com last Friday reported Justice William F. Mastro's writing for a unanimous panel that "[W]hile the medical examiner has the statutory authority…to remove and retain bodily organs for further examination and testing in connection therewith, he or she also has the mandated obligation…to turn over the decedent's remains to the next of kin for preservation and proper burial once the legitimate purposes for the retention of those remains have been fulfilled," [ See Shipley v. City of New York, 2009-03226 ].

The New York court specifically distinguished between this case and Ohio's recent Albrecht v. Treon case, explaining that they "acknowledged that a majority of the Supreme Court of Ohio reached a contrary conclusion under similar facts upon its application of the distinct statutory and decisional law of that jurisdiction. Mindful of that decision, we decline to follow it, since it was premised upon a due process analysis of the next of kin’s alleged property interest in a decedent's bodily organs rather than upon the right of sepulcher. Moreover, the Ohio statutory scheme discussed in that case made no provision for the return of such organs to the next of kin and, indeed, was subsequently amended to expressly require that the coroner dispose of such organs as medical waste.

"In the case before us, the plaintiffs, Jesse's next of kin, have alleged that at the time the medical examiner made their son's body available to them for burial, they were not advised that the brain had been removed and retained for further examination. They have alleged further that, believing Jesse's body to be whole, they arranged for the wake, religious funeral services, and interment of their son's remains, only to learn two months later and quite by accident that Jesse's entire brain, the organ in which the very essence of their son had reposed, was still awaiting further examination in the mortuary. The fact that the organ in question was Jesse's brain serves to make these allegations most compelling, since,

'[i]n the end, this case is not about a random piece of human tissue.It is about the decedent’s brain.The brain was the source of the deceased’s every thought, aspiration, dream, fear, laugh, memory, or emotion; it was the origin of every word spoken, every song sung, every joke told; everything a family member loved about the deceased could be traced back to it. If the next of kin have any right to the decedent’s body, the right must include the brain” (Albrecht v Treon, 118 Ohio St 3d at 365, 889 NE2d at 134[dissenting opinion]).'"

The Albrecht case referred to above was a certified question from the Ohio Southern District Court, holding that "the next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent’s tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing." The Southern District held similarly, upheld by the 6th. Circuit Court of Appeals.

Tuesday, October 05, 2010

LexisNexis opened the doors to “Lexis Advance for Solos” today, Law.com's Law Technology News report this morning. "The new product, aimed at one- and two-attorney law firms, is a web-based interface to the New Lexis 1.0 platform, which serves up LexisNexis content in XML markup language over a .NET architecture with a browser interface designed for lawyers who want easy access to legal research that does not require advanced training."

The Ohio Supreme Court announced yesterday that it will accept public comment on amendments to the annual update to the Rules of Practice and Procedure, which were recommended by the Supreme Court Commission on the Rules of Practice and Procedure, until Nov. 2, 2010.

Among the proposed amendments:

App. R. 9 would require that a written transcript be the official record on appeal and that any electronic recording must be transcribed by a court appointed reporter.

App. R. 21 would set oral arguments in appeals courts automatically for all cases unless a local rule requires a party to request it.

Monday, October 04, 2010

Ohio Attorney General Richard Cordray last Wednesday announced that a two-tiered program, in part utilizing an automated message to remind offenders of their appointments, and, secondly, reimbursing sheriff's offices for tracking down some 50 high-level offenders who have fled the state, funded with $155,546 in federal grant money.

The first program, called “Active Contact,” is an automated system that calls registered sex offenders to remind them when they are due to renew their registration with Ohio's electronic Sex Offender Registration and Notification system, as required by law., a Port Clinton, Ohio NewsHerald article, last week, said. Although several states use the system in areas where there are high concentrations of sex offenders, Ohio, Louisiana, and Utah are the only three using it state-wide.

The second program gives sheriff's offices up to $2,000 in reimbursement to travel out of state to pick up a wanted Tier III sex offender, the most serious designation requiring checking in with the sheriff's office every three months for life.

Friday, October 01, 2010

For the average person on the street the intricacies and in & outs of the law and government can be bewildering at best, and written instructions are often of little help. Forms & procedures are periodically changed or updated as well, and the mere fact that "change" has occurred can cause confusion.

Sometimes it's just nice to send out a "hats off" and some recognition, so, when the Warren, Ohio Tribune Chronicle last Monday posted an article about Trumbull County Probate Court Judge Thomas Swift's new approach to updating that county's instructions on guardianships, we took note.

Trumbull County's Probate Court produced a 17-minute film that is posted on its website offering the basics for anyone thinking of becoming a guardian for a family member or friend.

Local filmmaker Jim Fogarty said of the project that they "actually took a more modern approach to the probate court subject. It was better than someone standing and lecturing. We presented it in a more dramatic fashion."